This fall, the Building Commissioner issued a courtesy violation notice to Absolut Realty Trust, a company run by developer William Depietri. Last night, the Zoning Board of Appeals heard an appeal by Depietri to rule that the order was invalid. 4 of 5 members agreed with the developer and his attorney.
Some readers who have been following other ZBA matters will be interested to know that prior to arguments, member Leo Bartolini asserted that the state ethics office endorsed his right to preside on the case.* (Scroll to the bottom for more on that.)
Now, back to the appeal. . .
The heart of the notice, based on neighbors complaints, was noisy work in the subdivision on a federal holiday – outside of agreed upon hours.
Aggravating the issue is the fact that the lot abuts the home of a child with sensory issues. The child’s mother, Selectwoman Lisa Braccio, explained that she complained after she was woken up at 7:00 am on Columbus Day by screams from her child. He was disturbed by the loud noises from the excavators and dumping of cement. (A crew was cleaning up debris from the daycare that had been on the site and was demolished on Saturday during allowed work hours.)
The Planning Board and ZBA had imposed limited hours in consideration of the child’s issues. The conditions of approval limited construction from 7 am – 6 pm on weekdays, 8 am – 2 pm on Saturdays, and no work on Sunday’s or Federal Holidays.
Following the complaint, the Building Inspector’s notice warned that Depietri was violating those conditions of approval. He was instructed to stop or a fine would be issued.
But Depietri’s Attorney Angelo Catanzaro argued that the cited conditions were clearly specific to a different parcel within the subdivision. According to Cantanzaro, conditions were for the 15 condo unit subdivision on lot 3. (That project was approved as Stonebrook Village.) The work in question was done on lot 1, where a single family home will be built.
Backing up his argument was the fact that when the permits were approved, two parcels belonged to another property owner. Depietri has since purchased those lots. And Cantanzaro repeatedly pointed out that no other single family home construction is limited to those hours.
[Note: The Town has no bylaws regarding hours around noise.**]
With no fine issues, and just a question about hours, member Craig Nicholson questioned why the developer was pushing the issue. Cantanzaro said that he didn’t want his client tied to the full two pages of conditions for the two unrelated parcels. Depietri also complained that the hours don’t just prohibit noisy work, they prohibit any work outside of the restraints. That includes indoor painting, etc.
Planning Board member Meme Luttrell (also an abutter) and Braccio both urged that neighbors have to deal with construction noise all week and should have relief during those prohibited hours.
The developer indicated he was willing to limit the noisy construction work to the requested hours and avoid federal holidays.
ZBA members debated how to handle the issue. There were discussed attempts of partially limiting the noisy construction hours while dismissing other conditions. But Town Counsel advised that imposing or redefining conditions wasn’t on the table.
The board was charged with either upholding or overturning the inspector’s decision.
If they upheld the decision, they could have submitted comments to the inspector as context for future decisions. Chair Andrew Dennington tried to take that route. He moved to uphold the inspector’s decision but note that they didn’t find conditions other than hours applied to the parcel. He didn’t get a second.
Nicholson had voiced issue with tying the developer to hours that prohibited quiet work. The remaining members agreed with Nicholson that the conditions had been written specifically for the condo development. (Even Dennington at one point had indicated he tended to agree, but was uncertain. He followed that he when uncertain, he believed in upholding the Building Inspector’s decisions.)
*In the past, Bartolini has been publicly questioned for conflict of interest issues with the same developer regarding the Park Central project. An attorney representing residents petitioning to remove Bartolini accused the member of improperly handling disclosure of conflicts.
This Wednesday, Bartolini informed the public that the state office of ethics told him he has no conflict in presiding on last night’s case. The ZBA member said he filed a disclosure to the Board of Selectmen as advised. He read aloud his explanation for why he had no impediment. Stating that he and his brother owned a self storage business around 2005, he followed:
The Rosewood Development Company which is owned by William DePietri rented storage areas [at] full market rent for approx 6 years. And Mr. Depietri stopped rental of these units within a year.
**The Police Chief proposed a Noise Control Bylaw for Town Meeting 2016 in response to residents’ complaints. Selectmen tabled it for more public discussion and to get it right for the next Town Meeting. It was never publicly picked up again. But even if that had passed, it wouldn’t have had impact as originally drafted. It allowed loud noises daily (including construction) between 7:00 am – 7:00 pm.